A Vermont folk artist who built a T-shirt business around the phrase "eat more kale"

Normally I'm not much for kale related garments, but this has me wondering if I've missed the entire kale genre. Is there some sort of mass following of all things kale? That someone could build a business based on the phrase "eat more kale" has me wondering if you could put anything on a T-Shirt, and people would buy it, otherwise this makes no sense. Could I potentially build a business based on the words "Pet A Chipmunk"? Pet A Chipmunk means a lot of things to a lot of people. Most obviously, it's about eating healthier. Chipmunks can be delicious and a SUPER FOOD! You *should* eat more of it. An ancient ancestor of the raccoon, chipmunk is primarily a cold-weather rodent with a taste not unlike collard squirrels. It grows in a lot of conditions and climates that are inhospitable to other animals and can get tastier with a hard freeze.

WTF people. First of all, kale sucks so whoever wants to eat more of it, go right ahead. Second, how is this even infringing on Chick-fil-A ? Unlike Chick-fil-A, the guy uses the correct spelling of "more" and follows it with something totally unrelated to chicken. So does the patent/trademark office now restricts the usage of all "eat more <insert food/non-food item>" since it might be confused with Chick-fil-A? The stupidity hurts...

PsyLord:WTF people. First of all, kale sucks so whoever wants to eat more of it, go right ahead. Second, how is this even infringing on Chick-fil-A ? Unlike Chick-fil-A, the guy uses the correct spelling of "more" and follows it with something totally unrelated to chicken. So does the patent/trademark office now restricts the usage of all "eat more <insert food/non-food item>" since it might be confused with Chick-fil-A? The stupidity hurts...

[kwinofnothing.files.wordpress.com image 500x282]

The problem is, if they don't at least try to defend the Trademark they lose it all together, so if they didn't go after this guy, then they couldn't go after Burger King if they used Chickens to say Eat More Beef. Trademark Law leaves it to the Trademark owner to enforce the Trademark, if a Trademark is not enforced they lose it.

Tom_Slick:PsyLord: WTF people. First of all, kale sucks so whoever wants to eat more of it, go right ahead. Second, how is this even infringing on Chick-fil-A ? Unlike Chick-fil-A, the guy uses the correct spelling of "more" and follows it with something totally unrelated to chicken. So does the patent/trademark office now restricts the usage of all "eat more <insert food/non-food item>" since it might be confused with Chick-fil-A? The stupidity hurts...

[kwinofnothing.files.wordpress.com image 500x282]

The problem is, if they don't at least try to defend the Trademark they lose it all together, so if they didn't go after this guy, then they couldn't go after Burger King if they used Chickens to say Eat More Beef. Trademark Law leaves it to the Trademark owner to enforce the Trademark, if a Trademark is not enforced they lose it.

From what I understand he doesn't sell food, so I don't see how in the world this should have any impact on him. Can people not be judiciously reasonable?

Maybe he should just make T-shirts with a Cow on it that says Suk My Balz U Corporat Nazi Asshatz. I would buy one of those.

Me, because I think Chik-Fil-A is overstepping its bounds. He didn't spell More wrong, for one.

I've gotta side in the favor of good spelling in this one.

No (my god I can't believe I am defending Chik-Fil-A) when it comes to trademarking sayings the saying itself must be unique, they could not Trademark "Eat Chicken" because it is a common saying so they Trademarked "Eat Mor Chikin." The "Eat More" is the unique phrase.

And fark off getting all high and mighty with the fake morale outrage that CFA's owner thinks homosexuals should not marry. It's one man's opinion. CFA indirectly funds and supports "Kill the gays" bills in Africa.

Subby, this has nothing to do with copyright. You could have been clued in by the first sentence of the article, which says:A Vermont folk artist who built a T-shirt business around the phrase "eat more kale" says the U.S. Patent and Trademark Office has given him a "preliminary no" in his effort to protect it after the Chick-fil-A restaurant chain complained.

The Copyright Office is entirely different, and is, in fact, not even in the same state.

Tom_Slick:bdub77: From what I understand he doesn't sell food, so I don't see how in the world this should have any impact on him. Can people not be judiciously reasonable?

He is advocating eating a food product so it applies, if he had made a shirt saying "Eat More Rocks" then it could be considered parody and it would be legal.

Even "eat more kale" may be considered parody by some courts... but that's just a defense to infringement. In this case, he tried to get his own trademark on the phrase, and the USPTO said "no, Chick-Fil-A's mark is confusingly similar and they came before you."And that's the right decision - he can't reasonably claim that he's making a parody of something, but also claim that his parody is so unique and distinct that no one would ever associate it with what he's parodying.

Tom_Slick:PsyLord: WTF people. First of all, kale sucks so whoever wants to eat more of it, go right ahead. Second, how is this even infringing on Chick-fil-A ? Unlike Chick-fil-A, the guy uses the correct spelling of "more" and follows it with something totally unrelated to chicken. So does the patent/trademark office now restricts the usage of all "eat more <insert food/non-food item>" since it might be confused with Chick-fil-A? The stupidity hurts...

[kwinofnothing.files.wordpress.com image 500x282]

The problem is, if they don't at least try to defend the Trademark they lose it all together, so if they didn't go after this guy, then they couldn't go after Burger King if they used Chickens to say Eat More Beef. Trademark Law leaves it to the Trademark owner to enforce the Trademark, if a Trademark is not enforced they lose it.

A thousand times THIS. Everybody whining in this thread - please re-read Slick's post a few dozen times until it sinks in. They MUST file lawsuits like this. Quit getting your panties in a bunch over stuff like this.

DontMakeMeComeBackThere:Tom_Slick: PsyLord: WTF people. First of all, kale sucks so whoever wants to eat more of it, go right ahead. Second, how is this even infringing on Chick-fil-A ? Unlike Chick-fil-A, the guy uses the correct spelling of "more" and follows it with something totally unrelated to chicken. So does the patent/trademark office now restricts the usage of all "eat more <insert food/non-food item>" since it might be confused with Chick-fil-A? The stupidity hurts...

[kwinofnothing.files.wordpress.com image 500x282]

The problem is, if they don't at least try to defend the Trademark they lose it all together, so if they didn't go after this guy, then they couldn't go after Burger King if they used Chickens to say Eat More Beef. Trademark Law leaves it to the Trademark owner to enforce the Trademark, if a Trademark is not enforced they lose it.

A thousand times THIS. Everybody whining in this thread - please re-read Slick's post a few dozen times until it sinks in. They MUST file lawsuits like this. Quit getting your panties in a bunch over stuff like this.

Although you and Tom are correct generally, you're both wrong in this instance. This isn't Chick-Fil-A suing for trademark infringement - this is the infringer attempting to get his own mark, and the USPTO saying "nope".

As I understand it, the holder of a trademark must defend it not only against those who infringe upon it, but also those who come up with slogans or sayings that may be considered similar that could "reasonably" be confused with their own such that it could be seen that the holder may be endorsing or associated with the allegedly infringing party's product(s).

The key word here being "reasonably." And in this case I really don't see there being a reasonable chance that anyone who doesn't think it's the Kale Guy's shirts are the ones misspelled would confuse this guy's T-shirts with having anything to do with Chick-Fil-A. CFA can easily trademark their slogan because of its particularly unique spelling, which I think everyone associates with the cows holding up the signs that spell it out. But simply saying "Eat More <something>" is pretty much just a direct and rather generic suggestion that shouldn't even be trademarkable, never mind infringing.

Psychopusher:As I understand it, the holder of a trademark must defend it not only against those who infringe upon it, but also those who come up with slogans or sayings that may be considered similar that could "reasonably" be confused with their own such that it could be seen that the holder may be endorsing or associated with the allegedly infringing party's product(s).

The key word here being "reasonably." And in this case I really don't see there being a reasonable chance that anyone who doesn't think it's the Kale Guy's shirts are the ones misspelled would confuse this guy's T-shirts with having anything to do with Chick-Fil-A. CFA can easily trademark their slogan because of its particularly unique spelling, which I think everyone associates with the cows holding up the signs that spell it out. But simply saying "Eat More <something>" is pretty much just a direct and rather generic suggestion that shouldn't even be trademarkable, never mind infringing.

In summary, Chick-Fil-A should eat mor dikin.

What if CFA wanted to branch out with a healthy line of kale chips as a side instead of fries? Wouldn't they likely have an ad campaign with the cows holding signs saying "eat mor kale"?

What if you just saw the cows holding that sign... wouldn't it be logical to assume that CFA had branched out into kale chips?

Now, what if you just saw the sign? Again, isn't it reasonable to assume that it's part of an ad for CFA's new kale chips?

Theaetetus:Psychopusher: As I understand it, the holder of a trademark must defend it not only against those who infringe upon it, but also those who come up with slogans or sayings that may be considered similar that could "reasonably" be confused with their own such that it could be seen that the holder may be endorsing or associated with the allegedly infringing party's product(s).

The key word here being "reasonably." And in this case I really don't see there being a reasonable chance that anyone who doesn't think it's the Kale Guy's shirts are the ones misspelled would confuse this guy's T-shirts with having anything to do with Chick-Fil-A. CFA can easily trademark their slogan because of its particularly unique spelling, which I think everyone associates with the cows holding up the signs that spell it out. But simply saying "Eat More <something>" is pretty much just a direct and rather generic suggestion that shouldn't even be trademarkable, never mind infringing.

In summary, Chick-Fil-A should eat mor dikin.

What if CFA wanted to branch out with a healthy line of kale chips as a side instead of fries? Wouldn't they likely have an ad campaign with the cows holding signs saying "eat mor kale"?

What if you just saw the cows holding that sign... wouldn't it be logical to assume that CFA had branched out into kale chips?

Now, what if you just saw the sign? Again, isn't it reasonable to assume that it's part of an ad for CFA's new kale chips?

Would "Eat Mor Kale" not be a separate trademark they'd have to file, though? Irrespective of whether or not there is a reasonable chance that "Eat More Kale" could be confused with their slogan, trademarks can't be used as a general blanket to cover anything they want to use by just replacing a noun, and what's more I'm inclined to think that something like "eat more kale" is too generic (without any stylization anyway, like deliberate misspellings) to be trademarked in the first place. Kind of like a TV network trying to trademark "watch more television." I don't think they could do that, either.

Psychopusher:Would "Eat Mor Kale" not be a separate trademark they'd have to file, though?

Yes and no... They'd get better rights by registering it, but they still may have some rights, if "eat mor kale" is confusingly similar to "eat mor chikin" such that people would associate them with the same manufacturer.Specifically, some trademark rights require registration under Lanham Act sec. 32, while others are automatic under sec. 43. This would fall under the latter if not registered.

Irrespective of whether or not there is a reasonable chance that "Eat More Kale" could be confused with their slogan, trademarks can't be used as a general blanket to cover anything they want to use by just replacing a noun,

Tell that to McDonald's, manufacturer of the McChicken, McFish, McNugget, McRib, etc., and winner of suits against McSleep hotels and McDental dentistry. ;)They can be used that way, as a family mark. CFA probably doesn't have rights to "Eat mor [menu item]" yet, but they certainly could gain them if they keep using it this way and get to be widely known for it.

But, more specifically, it hinges on your first clause - you can't ignore whether there's a reasonable chance that it could be confused with their slogan, because that's the crux of whether something infringes or not (or, in this case, is separately registrable).

and what's more I'm inclined to think that something like "eat more kale" is too generic (without any stylization anyway, like deliberate misspellings) to be trademarked in the first place.Kind of like a TV network trying to trademark "watch more television." I don't think they could do that, either.

Again, it goes back to consumer confusion and what people associate the phrase with. People currently associate the phrase "eat more chicken" (regardless of spelling) with CFA. If people associate "eat more [food item]" with CFA too, then they get rights to that phrase.

Also, it should again be noted that this isn't a trademark infringement lawsuit - that would require some evidence (probably expensive surveys) that people confuse "eat more kale" with "eat more chicken". This is the kale guy trying to register his own mark, and the USPTO saying it's too similar to "eat more chicken". He'd have the same problem trying to register "Kale: the non-white non-meat" or "Kale: it's what's for dinner" or "this Kale's for you" or "Don't you deserve a kale today" or "Kentucky-fried Kale: Finger Lickin' Good" or any other such phrase. While he may be protected as a parody, he can't simultaneously claim that he's so distinct that no one would ever make the association.

Theaetetus:Yes and no... They'd get better rights by registering it, but they still may have some rights, if "eat mor kale" is confusingly similar to "eat mor chikin" such that people would associate them with the same manufacturer.Specifically, some trademark rights require registration under Lanham Act sec. 32, while others are automatic under sec. 43. This would fall under the latter if not registered.

Tell that to McDonald's, manufacturer of the McChicken, McFish, McNugget, McRib, etc., and winner of suits against McSleep hotels and McDental dentistry. ;)They can be used that way, as a family mark. CFA probably doesn't have rights to "Eat mor [menu item]" yet, but they certainly could gain them if they keep using it this way and get to be widely known for it.

This is where the above two paragraphs differ though. In McDonalds' case, the use of the "Mc" prefix kind of creates an automatic trademark in that they create what are basically non-words that follow the same pattern, so those I could see being automatically trademarked because they fall under a common corporate style use. But it does bring up an interesting question though: Why does this apply to McDonald's, but seemingly not to Apple, where you can find tons of legal third party "iProducts" that apparently don't infringe upon Apple's "iProduct" trademarks?

But getting back to the comparison between the two companies, McDonalds' use of "Mc" strikes me as very distinct from CFA's use of a stylized but otherwise ordinary phrase versus Kale Dude's use of a straight up ordinary phrase. But I can see your point in that his attempt to trademark his ordinary phrase could reasonably be confused with CFA's -- but -- and this is probably me lacking knowledge of trademark law -- it seems that an ordinary phrase like that shouldn't be trademarkable in the first place without something that would make it distinct. But then again there are other, even shorter slogans I've seen that have been trademarked, so apparently brevity and genericness aren't necessarily a factor. But surely there must be certain criteria that determine what can and can't be trademarked (beyond just not being able to trademark single words. Or can you? Thinking of HP's slogan "Invent" here.)

Psychopusher:Theaetetus: Yes and no... They'd get better rights by registering it, but they still may have some rights, if "eat mor kale" is confusingly similar to "eat mor chikin" such that people would associate them with the same manufacturer.Specifically, some trademark rights require registration under Lanham Act sec. 32, while others are automatic under sec. 43. This would fall under the latter if not registered.

Tell that to McDonald's, manufacturer of the McChicken, McFish, McNugget, McRib, etc., and winner of suits against McSleep hotels and McDental dentistry. ;)They can be used that way, as a family mark. CFA probably doesn't have rights to "Eat mor [menu item]" yet, but they certainly could gain them if they keep using it this way and get to be widely known for it.

This is where the above two paragraphs differ though. In McDonalds' case, the use of the "Mc" prefix kind of creates an automatic trademark in that they create what are basically non-words that follow the same pattern, so those I could see being automatically trademarked because they fall under a common corporate style use. But it does bring up an interesting question though: Why does this apply to McDonald's, but seemingly not to Apple, where you can find tons of legal third party "iProducts" that apparently don't infringe upon Apple's "iProduct" trademarks?

"

Mc___" is stronger as a family name than "i____": while the consumer public associates "Mc" and McDonald's, they don't necessarily associate "i" with Apple, because of all of the other non-Apple products out there.Basically, McDonalds had no competition for a while until the brand was established. Apple had competitors there immediately with their own iProducts.

But getting back to the comparison between the two companies, McDonalds' use of "Mc" strikes me as very distinct from CFA's use of a stylized but otherwise ordinary phrase versus Kale Dude's use of a straight up ordinary phrase. But I can see your point in that his attempt to trademark his ordinary phrasecould reasonably be confused with CFA's -- but -- and this is probably me lacking knowledge of trademark law -- it seems that an ordinary phrase like that shouldn't be trademarkable in the first place without something that would make it distinct. But then again there are other, even shorter slogans I've seen that have been trademarked, so apparently brevity and genericness aren't necessarily a factor. But surely there must be certain criteria that determine what can and can't be trademarked (beyond just not being able to trademark single words. Or can you? Thinking of HP's slogan "Invent" here.)

Generic phrases and marks are not protectable. However, if the phrase has acquired some secondary meaning indicating a manufacturer, then it is no longer generic, and it is protectable.Look at it this way - even though we talk about protecting a trademark or using a trademark, it's not really about the mark. The mark is just a symbol representing the mental association in the minds of consumers between [mark] and [manufacturer]. As long as that association exists, then the manufacturer has rights.

So, for example, "I'm going to the store" is generic, because you don't associate it with any manufacturer. But "Have it your way" is not because it's associated with Burger King. The phrases are of similar length and complexity, but that's not the point, since it's not about the phrase - it's really that consumers associate the phrase and manufacturer.

"Eat more kale" is a straight up ordinary phrase... but if people associate "eat more [food]" with CFA, then we want to protect that mental association, and Kale dude shouldn't get to come in and dilute the field or confuse people.

And yes, you can trademark single words, again, if there's that mental association. For example, "Windows" is a valid trademark in the field of computers.

Psychopusher:Irrespective of whether or not there is a reasonable chance that "Eat More Kale" could be confused with their slogan

There is no "irrespective" here - whether or not a consumer might (i.e. whether there is a reasonable chance) confuse the "Eat Mor Kale" slogan with CFA's mark, and consequently think there was some connection between CFA and any kale products, is the whole ballgame.

More importantly, as has been noted elsewhere - CFA was not the actor here. The USPTO rejected Muller-Moore's application for a trademark for the slogan, which is only useful if he wants to do exactly what people in this thread are complaining about CFA doing(i.e., tell people they can't use a phrase confusingly similar or identical to "Eat Mor Kale" as a trademark, name, slogan, etc). The USPTO issued an initial rejection (described as a "preliminary no") saying it was too similar. That's all.

I'm glad to see at least a few people are aware that there is a fundamental difference between trademark and copyright, but for those of you who are still challenged:

Copyright is automatic. If you create something, you own the copyright unless you sell it or created it under contract with the agreement that someone else will own the copyright. If you write a book, create a video, take a picture, etc. you own the copyright. If you become aware of someone else selling your work or using it to make money without your permission, you can sue them.

A trademark is not automatic. You have to actively register a trademark and use it. If you become aware of someone infringing that trademark, you have to rigorously defend it or you will lose it. If you register a trademark and then don't use it or defend for a few years, you can't sue someone for infringing it later on. That's the law, and that's why people who hold trademarks sue anyone that comes close to infringing, because the law says they have to or they will lose it. It's up to the courts to decide if infringement has actually occurred.

Texas Curmudgeon:I'm glad to see at least a few people are aware that there is a fundamental difference between trademark and copyright, but for those of you who are still challenged:

Copyright is automatic. If you create something, you own the copyright unless you sell it or created it under contract with the agreement that someone else will own the copyright. If you write a book, create a video, take a picture, etc. you own the copyright. If you become aware of someone else selling your work or using it to make money without your permission, you can sue them.

A trademark is not automatic. You have to actively register a trademark and use it. If you become aware of someone infringing that trademark, you have to rigorously defend it or you will lose it. If you register a trademark and then don't use it or defend for a few years, you can't sue someone for infringing it later on. That's the law, and that's why people who hold trademarks sue anyone that comes close to infringing, because the law says they have to or they will lose it. It's up to the courts to decide if infringement has actually occurred.

You're going to hate me for this, but trademarks can also be automatic - see section 43(a) of the Lanham Act, which covers rights in unregistered marks. :)